2008-448, APPEAL OF REDIMIX COMPANIES, INC.

2007. We vacate and remand. was entitled to weekly benefits through his return to work on October 28,

involves heavy-duty work. March 2003, he has worked for Redimix as a cement truck operator, which

injury or an aggravation of a pre-existing condition on March 27, 2006, and

suffered from lower back pain since 1998 after he fell from a ladder. Since The CAB found or the record supports the following facts. Lafond has

the CAB ruled that the respondent, Brandon Lafond, had suffered either a new a decision of the New Hampshire Compensation Appeals Board (CAB) in which DALIANIS, J. The petitioner, Redimix Companies, Inc. (Redimix), appeals

orally), for the respondent. Matthew J. Lahey, P.A., of Laconia (Matthew J. Lahey on the brief and

on the brief and orally), for the petitioner. to press. Errors may be reported by E-mail at the following address: Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Michael R. Mortimer

(New Hampshire Compensation Appeals Board) APPEAL OF REDIMIX COMPANIES, INC. page is: http://www.courts.state.nh.us/supreme.

No. 2008-448 editorial errors in order that corrections may be made before the opinion goes Compensation Appeals Board Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as removing Lafond’s L4-5 and L5-S1 intervertebral discs.

after he tested positive for methadone.

M.D., who recommended and, on December 29, 2006, performed, surgery, kneeling, squatting or climbing; and (4) no more than occasional driving with worse. Eventually, Lafond was referred to a neurosurgeon, Anthony A. Salerni, pounds; (2) no frequent lifting of more than five pounds; (3) no bending, Lafond underwent physical therapy, which made his back and left leg feel

positive for cocaine. Redimix discharged Lafond for cause in October 2006

impinged on the descending S1 nerve roots on both sides. sides, and a central herniation of the L5-S1 intervertebral disc, which slightly intervertebral disc, which slightly impinged on the L5 nerve roots on both

the following restrictions: (1) no lifting of more than twenty-five to thirty-five for epidural injections, which did not significantly relieve his symptoms.

alternative work, but was suspended for thirty days in May 2006 after testing

disc disease at the L4-5 and L5-S1 levels, a central herniation of the L4-5

In May 2007, Dr. Salerni cleared Lafond to return to light duty work with February 2006. ongoing radiculopathy down his left leg. Dr. Miller referred Lafond to a clinic as a result of the low back pain he experienced periodically from 1998 to complaints in November 2005 and February 2006. Lafond did not miss work

the incident. Before his surgery, Lafond returned to work, performing temporary hours, his left leg felt tingling, numb and cold. Lafond immediately reported

a positive sciatic stretch. A lumbar MRI showed that Lafond had degenerative Christopher Almeida, D.O., examined him. Dr. Almeida’s examination revealed Lafond sought medical attention at Lakes Region General Hospital where Miller opined that the March 27, 2006 incident had caused Lafond to suffer Dr. Arnold Miller, who had treated him previously for lower back pain. Dr. February 2005, Lafond again complained of lower back pain. He had similar Approximately one month after the March 27, 2006 incident, Lafond saw

felt an immediate pop in his back and pain radiating down his left leg. Within

performing only sedentary work. Several days later, at Redimix’s direction, Lafond reported to work the next day, but was placed on light duty,

for his pain. X-rays taken of his back in 2002 and 2003 were negative. In December 2003 and August 2004, and on each occasion was given medicine 2001, September 2001, April 2002, August 2002, February 2003, June 2003, truck’s roof and, when his body fell back to the seat, the seat bottomed out. He a pothole with such force that his body lifted out of the seat, his head hit the On March 27, 2006, while driving a fully loaded cement truck, Lafond hit

his employment with Redimix. He sought treatment in October 2000, February Lafond received treatment for his lower back pain both before and after [his] disability.” appeal followed. the evidence that [his] work-related activities probably caused or contributed to which upheld it. Redimix moved for rehearing, which the CAB denied, and this existing condition, to his December 29, 2006 surgery. This decision was appealed to the CAB,

matter of medical fact is sufficient to show legal causation. Id. In the latter (Supp. 2008). “To show this, the claimant must prove by a preponderance of any work-related activity connected with the injury as a (quotation and brackets omitted). When the claimant does not have a pregreater risks than those encountered in [his] non-employment activities.” condition, which entitled him to temporary total disability payments retroactive event or condition. Id. medical condition by demonstrating that the work-related conditions presented the evidence that [his] employment contributed something substantial to [his] has a pre-existing disease or condition, he “must show by a preponderance of causation and medical causation. used depends upon the previous health of the employee.” Id. When a claimant to make the injury work-connected.” Id. (quotation omitted). “The test to be “The legal causation test defines the degree of exertion that is necessary

Lafond’s condition as a medical fact. incident was the “straw that broke the camel’s back” in terms of causing his injuries arose “out of and in the course of employment.” RSA 281-A:2, XI causation. At oral argument, Redimix conceded that the March 27, 2006

hearings officer found, to the contrary, that the March 27, 2006 incident CAB’s decision was erroneous. the claimant’s injury is in some way work-related, while medical causation not causally related to the March 27, 2006 incident. In March 2007, a Id. Legal causation entails a showing that The test for causation has two prongs: a claimant must prove both legal

omitted).

Appeal of Kehoe, 141 N.H. 412, 416 (1996) (quotation

To make out a claim for workers’ compensation, Lafond had to show that

541:13 (2007). The appealing party has the burden of demonstrating that the compensation benefits to Lafond on the ground that his current disability was unreasonable. Appeal of Belair, 158 N.H. ___, ___ (decided Jan. 14, 2009); RSA by a clear preponderance of the evidence, we find it to be unjust or We will not disturb the CAB’s decision absent an error of law, or unless, another employer.

Redimix’s workers’ compensation insurance carrier denied workers’

October 2007, Lafond took a position as a hazardous waste coordinator for the additional qualification that he be able to change position at will. In non-employment life of the claimant or any other person. Larson,

proceedings consistent with this opinion. this analysis, we vacate its finding of legal causation and remand for further

non-employment activities. examining whether his work-related conditions presented greater risks than Lafond’s employment contributed “something substantial” to his condition by pounds, such as bags of golf clubs . . . and step ladders.”

employment activities); 4 “something substantial” to his condition. The comparison is to the normal

respond to this argument. Because we agree that the CAB failed to conduct

Redimix argues that the CAB erred because it failed to analyze whether usual wear and tear of life—which certainly includes lifting objects weighing 20

46.03[2], at 46-7. demonstrating they presented greater risks than those encountered in her non- supra § conditions contributed something substantial to her condition by multiple chemical sensitivity syndrome had to show that her working 2006 injury, Lafond had to show that his working conditions contributed Thus, to establish that his employment was the legal cause of his March 27, The parties do not dispute that Lafond had a pre-existing back condition.

something substantial to her disability by demonstrating they presented establish legal causation by showing that her work conditions contributed contribution was substantial, while the employment added nothing to the N.H. 211, 212, 215 (2000) (claimant with attention deficit disorder had to

(to establish legal causation, a claimant with a pre-existing condition of 46-19 to 46-20; see Appeal of Lockheed Martin, 147 N.H. 322, 323, 325 (2001) on one occasion she lifts a twenty pound weight on the job. The analysis is similar in a non-heart condition case. Id. § 46.03[5], at

injury]” because “it must offset the causal contribution of the personal risk.” compensation would be denied “because legally the personal causal Id. If, on the other hand, the claimant had a pre-existing heart condition, competing personal risk to overcome.” 2 A. Larson, something and the employee’s personal life contributed nothing to her collapse. compensation would be awarded because the employment contributed medical fact. Id. If the claimant had no pre-existing heart condition, then Suppose, as well, that the lift causes the claimant to suffer a heart attack as a

For example, suppose a claimant’s usual job does not involve lifting, but

Id.

employment must contribute something substantial to increase the risk [of Compensation Law § 46.03[2], at 46-7 (2008). In the former situation, “the

the place where the injury . . . occurred is enough” because “there is no situation, “[a]ny employment contribution, even merely putting the employee in independent cause of the disability.”

said to be an aggravation of the preexisting condition constituting an

evidence in the record that Lafond’s pre-existing condition was compensable.

inducing event.” BRODERICK, C.J., and DUGGAN and HICKS, JJ., concurred.

condition, lower back pain, was neither work-related nor disabling. more likely an independent cause of the resulting disability, in which case it is at 684. The record on appeal reveals that Lafond’s independent medical See Appeal of Briggs, 138 N.H. 623, 631 (1994); Appeal of Bergeron, 144 N.H. existing condition stabilized before the new injury occurred. This analysis did not apply to the instant matter because there is no

Id. (quotation omitted).

ordinarily it must have resulted from a “distinct and extraordinary traumainjury to constitute an independent cause of the claimant’s disability, causation analysis that applies pre-existing condition did not stabilize before the new injury, then for the new

claimant’s pre-existing condition stabilized, “then the subsequent incident is discuss it in their briefs, we address it. Id. If the this case. Because this issue may arise on remand and because both parties at 432. To determine this requires examining whether the claimant’s precause of his current disability. Appeal of Commercial Union Ins. Co., 140 N.H. claimant must show that the new work-related injury was an independent N.H. 681, 684 (2000). In such a case, to recover for another injury, the compensable (e.g., work-related and disabling). See Appeal of Bergeron, 144

140 N.H. 429, 432 (199 5) (quotation omitted). This construct is from a extraordinary trauma-inducing event.” Appeal of Commercial Union Ins. Co., The CAB focused upon whether the pothole incident was a “distinct and

focused upon a different causation analysis that, in fact, was not relevant to Rather than engage in the analysis we have described above, the CAB